MyNation KnowledgeBase

Landmark Judgments and Articles on Law

Register to Download

Maintenance u/s.125 discharged for wrong jurisdiction

Madras High Court

K. Mohan
Balakanta Lakshmi on 13 December, 1982

Equivalent citations: 1983 CriLJ 1316

Bench: R Pandian

ORDER Ratnavel Pandian, J.

..1. This rider is destined opposite a rough sequence made’ in M. C. 806 of 1980 on a record of a II Metropolitan Magistrate, Edmore, Madras, rejecting a row of a rider postulant (respondent in M. C. 806 of 1980 — husband) that a Court next did not have a territorial office to perform an focus underneath Section 125, Cr. P.C. filed by a respondent herein (wife).

..2. It is a unequivocally hapless box wherein a rarely prepared integrate are eternally fighting with any other apparently for a reason, that they are not means to get on together amicably. It is seen from a annals that after a marriage, both a parties resided during Bangalore and that a rider postulant filed an strange petition for nullification of a matrimony before a Principal Civil Judge, Bangalore city. Be that as it may, a respondent had left Bangalore and afterward had filed an focus underneath Section 125 Cr. P.C. before a Second Metropolitan Magistrate, Edmore, Madras, claiming upkeep from a rider petitioner. In that petition she has staid in a rough that she is now staying during Madras. The respondent, on receipt of a notice from a Court of a Second Metropolitan Magistrate, Madras, had filed a opposite denying a allegations and lifting a rough objection, saying that a pronounced Court had no territorial office to perform this focus underneath Section 125 Cr. P.C. on a belligerent that a respondent is not staying within a jurisdiction, viz. in a Madras City, nonetheless on a other palm is henceforth staying with her relatives during Ambattur within a office of a Chengalpattu district and therefore a focus ought to have been presented before a Court endangered in Chengalpattu district carrying office over Ambattur area. To justify his rough objection, a postulant has filed a series of papers remarkable as Exs. R-l to R-5. No verbal justification was let in by possibly of a parties. The schooled Magistrate, watching that a tenure ‘resides’ occurring in Section 125 (1) (b) of a Cr. P.C. should be liberally construed, held, on a solitary basement of a averment in a rough of a petition that a respondent is staying during Madras, that he has got a territorial office to perform that focus and a rough conflict lifted by a postulant with courtesy to a office is to be overruled. It is as opposite this order, a benefaction rider is preferred.

..3. Though a respondent has perceived a summons, she is conjunction appearing in chairman nor appearing by any counsel. Therefore this Court has allocated Mr. A. Sasidharan, as amicus curiae to seem on interest of a respondent and to support this Court.

..4. This rider raises a doubt as to a loyal construction of a tenure ‘resides’ appearing in Section 126 (1) (b) of a Criminal P.C. Leaving detached a doubt about a respondent’s desert for maintenance, we have to establish in this box a doubt about a territorial office of a Court during Madras to perform this focus filed underneath Section 125 Cr. P.C. since a office of a Court is to be dynamic by a chateau of a parties. The answer to this doubt turns on a interpretation of Causes (a) to (c) of Section 126 (1) of a Code that delimit a jurisdictional boundary of a Court to perform a petition underneath Section 125. we shall currently give a benefaction and, a analogous past supplies of a Code in a following list so that one can simply know a position of law that stood progressing and a benefaction position concomitant on a amendment done in a benefaction Code.

On a plain reading of Section 488 (8) of a aged Code, it can be seen that a place where a mother resided after abandonment by her father was not material. This caused good hardship to wives. who after abandonment were vital distant divided from a place where they and their husbands final resided together. So, in sequence to mislay such hardships, on a recommendation done by a Law Commission, a benefaction Section 126 (1) (b) was enacted by introducing a countenance ‘or his wife’ between a difference ‘he’ and, ‘resides’, so that a venue of a record should also embody a place where a forlorn or neglected mother might be staying on a date of a application. In a benefaction revision, a essential word ‘resides’ occurring in Section 126 (1) (b) alone comes adult for interpretation. Under a aged Code, a Magistrate of a district where a father or father, as a box might be, resided, customarily had a jurisdiction. Now a office is lengthened or widened. 5. 126 (1) gives 3 choice forums as enumerated, in Clauses (a) to (c) there under. These choice forums are resolutely given by a Parliament so as to capacitate a rejected mother or infirm child to get a much-needed and, obligatory service in one or a other of a 3 forums that is available to them. Needless to contend that a pierce underneath Section 125 is in a inlet of a polite pierce and a pill is a outline one, as laid down in Sub-section (2) of Section 126, and a chairman seeking a remedy, as forked out above, is customarily a infirm person. The introduction of a countenance in Section 126 (1) (b) is ‘or his wife.’

See also  When arbitral award is not liable to be set aside?

..5. So, a word ‘resides’ should be positively liberally construed, nonetheless during a same time, nonetheless doing any assault to a denunciation and nonetheless defeating a unequivocally vigilant of this provision.

..6. The word ‘resides’ has been theme to opposing authorised opinions. In a Oxford Dictionary it is tangible as ‘….to live henceforth or for a substantial time, to have one’s staid or common abode, to live, in or during a sold place.’

..7. The Corpus Juris Secundum, Vol. LXXVII during page 285 states that a word ‘reside’ is employed in a far-reaching accumulation of significations, that a definition might differ according to a tie in that it is used, that a sold interpretation of a tenure in any given instance depends on a context and a purpose underneath care and that it should be interpreted in a light of a vigilant or purpose of a use. It is. serve remarkable therein as follows:– It has been pronounced that a word, ‘reside’ has dual graphic meanings, and that it might be employed in dual senses, and in what is infrequently referred to as a despotic legal, or technical sense, it means authorised home as. renowned from small chateau or. place of tangible abode. In this clarity a word ‘reside’ means authorised residence; authorised domicile, or a home of a chairman in speculation of law, a place where a chairman is deemed in law to live, that might not always be a place of his tangible home and so a tenure might meant something opposite from, being corporeal present, and does not indispensably impute to a place of tangible abode. When employed in this sense, a word,’reside’,.includes not customarily earthy participation in a place, nonetheless also a concomitant vigilant of selecting that place as a permanent residence.

..8. Again, during page 288, it is remarkable thus: Reside’ has been reason homogeneous to, or synonymous with, ‘abide’, ‘dwell; ‘to have one’s home’, ‘live’, ‘lodge?, ‘remain’, ‘residence’, ‘sojourn’, and ‘stay’ ‘Reside’ is pronounced to be. customarily classed as synonymous, with ‘inhabit’; nonetheless not., in strictness, scrupulously so.

..9. In a Words and Phrases, Per manent Edn. Volume 37, during page 308 it is tangible thus; To ‘reside’ in typical acceptation, means to dwell, or to live…’Reside’ means live, dwell, abide, sojurn, stay, remain, lodge.

..10. The above lexicographical definition of a word, therefore, takes in both a permanent home and a tern porary vital in a place and it is therefore means of opposite meanings including ‘domicile’ in a strictest and a many technical clarity and a proxy chateau in a magnanimous sense. Whatever definition is given to it, one thing is apparent and it is that it does not embody a infrequent stay in or a drifting revisit to a sold place. In short, a definition of a word would in a ultimate research count on a context and a purpose of a sold statute..

..11. In this case, a context and a purpose of a benefaction government positively do not enforce a importation of a judgment of home in a technical sense. The purpose of a government would, be improved served if a word ‘resides’ is accepted to embody proxy residence. For example, if a chairman goes from his permanent place ‘A’ to another place ‘B’ possibly for carrying out certain work or as an invitee or as a traveller and resides or stays there for one or dual days, he can't be pronounced to be staying during ‘B’ in a authorised sense. But it he goes to a place ‘B’ and stay there for some length of time, nonetheless not permanently, nonetheless for a purpose of possibly educating his children or carrying on a business for a substantial length of time, he resides during ‘B’. One can't give downright illustrations to explain what a tenure ‘resides’ means. j But, a definition has to count on a resources of any case. The categorical criteria in last what a tenure ‘reside’ means, is a goal or a animus manendi of a chairman staying in a sold place, and the, related countenance includes both proxy and permanent residence. But, a countenance ‘resides’ used in Section 126 (b) of a new Code will not embody a infrequent or drifting revisit or a brief, stay. On a other, hand, it implies some-more than that..

See also  If interim maintenance by wife has already been secured under Domestic Violence Act, will application u/s.125 CrPC be maintainable?

..12. Mr. V. Gopinathan drew a courtesy of this Court to decisions of a several High Courts and eventually to a preference of a Supreme Court, all defining a tenure ‘reside’.

..13. The Full Bench of the. Allahabad High Court, in Arthur Flowers v. Minnie Flowers (1910) ILR 32 All 203, has held, while interpreting a countenance ‘resides’ occurring in Section 3 of a Indian Divorce Act, that a small proxy tarry in a place, there being no goal of remaining there, will not volume to chateau in.that place within a definition of. a expression, so as to give office under, a Act to a Court within a internal boundary of whose office such a place is situate.

..14. In Charan Das v. Surasti Bai AIR 1940 Lah 449 : 1941-42 Cri LJ 105, it was reason that a solitary exam on a doubt of chateau was possibly a celebration had a animus manendi or an goal to stay for a definite,period during one place and if he had such an intention, afterwards alone could he be pronounced to reside there.

..15. In Balakrishna v. Mrs. B. Sakun-lala Bai AIR 194-2 Mad 666 : 194-2 Mad WN Cri 73, it has been pointed, out that a word ‘resides in Section 488 (8) Cr. P.- C. implies a small goal to rer maJn ata place and not merely to compensate it a infrequent revisit intending shortly, to pierce on to ones permanent residence.

..16. This Court has in Sampoornam v. N. Sundaresan , obseryed as follows during p, 275 of Cri LJ:– In short, Sub-section (8)of Section 488 Cr. P.C. does not indispensably impute to a permanent chateau and it refers also to proxy residence, and a word ‘residence’ implies something some-more than a brief revisit nonetheless not such a smoothness as to volume to domicile. Each case, has to be dealt with on a merits as has been forked out in Ganga Bai v. Pamanmal AIR 1938 Sind 223 1939-40 : Cri: LJ 117, temperament in mind that a territory should not be so particularly cont, strued as to dispossess a woman, who mostly in these cases is helpless, of assistance from a Court/which is many simply permitted to her. The Supreme Court in Jagir Kaur v. Jaswant Singh , after carrying referred to a definition of a tenure ‘resides’ as tangible lexicographically and as inter-: preted by a several High Courts, has celebrated as follows (at p. 415 of Cri LJ):- The decisions on the. theme are multitude and it would be fatuous to consult a whole field. Generally staid no preference goes so distant as to reason that ‘resides’ in a sub-section means only’ home in a technical clarity of that word. There is also a extended concord that it means something some-more than a (lying revisit to or a infrequent stay in a sold place. They determine that there shall be animus manendi or an goal to stay for a period, a length of a duration depending on a resources of any case. Having courtesy to a vigilant sought to be achieved, a definition substantial in a difference used; and a construction placed by motionless cases thereon, we would conclude a word ‘resides’ thus. :,a chairman resides in a place if, he by choice creates it his headquarters henceforth or even temporarily,; possibly a chairman has selected to make: a sold place his headquarters depends on a facts,of any case.

See also  Whether court can permit production of Certificate U/S 65B of Evidence Act at subsequent stage?

..17. Therefore, it is transparent that a exprecession ‘resides’ occurring in Section 126(1) (b) has to be given a magnanimous interpret ion and a legislature could not have dictated to use a pronounced tenure in a technical clarity of ‘domicile’ and it ‘has to be Understood to embody a proxy chateau also.

..18. Now, let us inspect a contribution of a benefaction case, giving a word ‘resides’ a magnanimous interpretation as forked put in the., above decisions.

..19. Mr. Gopinathan drew a courtesy of this Court to Exs. R. 1 toR 5,marked in this box and contended that a postulant herein has unambiguously valid that a respondent is staying in Ambattur. In Ex. R-l, a postal acknowledgment containing a signature of a respondent antiquated 20-7-1979, her chateau read,s so : “Mrs. K. Bala Kanaka Lakshmi, Laxmi Nivasl, No. 5, Kanniah Chetti St. Venkatapurarn, Ambattur P. O., Madras-53”. Ex. R. 2 is a respond notice antiquated 15-10-1979, sent by a respondent herself to a petitioner’s Counsel. In that respond notice also, she has given a same chateau as in Ex. R. 1. Ex. R. 5 is nonetheless another postal acknowledgment antiquated 9-8-1980, containing a signature of a respondent and therein also a respondent’s chateau is a same as in Ex. R. I-Thus, it is transparent that all a association and a communications addressed to a respondent during her chateau during Ambattur, Madras 53, were duly served on her. Above -all, she -herself has given her chateau in Oct 1979′.in Ex. R. 2, saying that she is staying during No. 2 Kanniah Chetti St. Venkatapuram, Ambattur, Madras 53.

..20. As opposite a above, documentary evidence, a Court next was prone to bottom a end holding that a respondent is staying during Madras, usually on a uncover done in a rough of a petition filed underneath Section 125 Cr. P.C. that reads thus: The petitioner/complainant Balakanaka Lakshmi, aged about 23 years, staying during Madras, gravely attest and state as follows. Barring this, there is zero on record to uncover that a respondent is staying within a territorial office of a Court next or during any rate in any partial of a Madras Corporation limits. The respondent would be conspicuously wordless about a tangible place of her chateau in her affidavit. Only if a respondent gives her- residential address, a postulant would be means to rebut it by producing justification to a contrary. Her bald, and deceptive matter that she is staying during Madras, will not capacitate a Court to arrive during any transparent end that she is staying within a territorial office of a Court. If unequivocally a respondent is staying in any partial of a Madras City, she should have privately given a doorway series and a names of a travel and of a locality, so that a Court next could certainly take seisin, of a matter. On a other hand, she has not denied a matter in a opposite that she is staying during Ambattur, Madras 53 (Madras 53 denotes a postal division). Ex. R. 5 antiquated 9-8-1980, reveals that a association addres sed to her has been served on her during her Ambattur address, even after her petition for upkeep dated, 20-2-1980 has been filed before a Court below, and a respondent herself has given her Ambattur chateau in Ex. R-2 Moreover, it might be remarkable that a notice released from this Court in this rider sent to a respondent by a II Metropolitan Magistrate, Egmore, Madras, has been served on a respondent customarily during her chateau during Ambattur mentioned above. Therefore, we unhesitatingly reason that a respondent is even now staying customarily during Ambattur. For all a reasons staid above, we reason that a respondent is not staying within a territorial office of a Court below, possibly temporarily or permanently, nonetheless she is valid to be ‘residing’ within a definition of a pronounced countenance used in that area a Court within a Chingalpattu district alone will have a territorial. jurisdiction’.

..21. In a result, the.revision is allowed, a sequence inspected by a II Metropolitan Magistrate is set aside and a conflict lifted by a postulant with courtesy to a territorial office is upheld. It is left to a respondent to benefaction a petition before a suitable and efficient Court carrying office over Ambattur.

Leave a Reply

Your email address will not be published.

Not found ...? HOW TO WIN 498a, DV, DIVORCE; Search in Above link
MyNation Times Magzine

All Law documents and Judgment copies
Laws and Bare Acts of India
Important SC/HC Judgements on 498A IPC
Rules and Regulations of India.


CopyRight @ MyNation

Free Legal Help, Just WhatsApp Away

MyNation HELP line

We are Not Lawyers, though No Lawyer will give we Advice like We do

Please review Group Rules – CLICK HERE, If You determine afterwards Please Register CLICK HERE and after registration  JOIN WELCOME GROUP HERE

We hoop Women Centric inequitable laws like False Section 498A IPC, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307, 312, 313, 323, 354, 376, 377, 406, 420, 497, 506, 509; TEP, RTI and many more…

See also  Child custody and Take Abroad.
MyNation FoundationMyNation FoundationMyNation Foundation